June 15, 2009

Much has been written recently about the Obama Administration’s “granting Miranda Rights” to enemy combatants captured in Afghanistan.

Show of hands: How many of you think that in Miranda v. Arizona the Supreme Court granted criminal suspects in custody the “right to remain silent” and the “right to an attorney?”

If you raised your hand, you’re wrong.

The Court in Miranda didn’t create those rights. Those rights have always belonged to Americans (and those on American soil) by virtue of the Fifth Amendment (right not to bear witness against oneself) and Sixth Amendment (right to an attorney) to the U.S. Constitution. Basically, the Court reasoned that, as a practical matter, having those rights doesn’t amount to much if you’re under arrest and you don’t know you have them, or are too frazzled at the moment to remember that you have them.

The point here is that the only “right” the Miranda Court created was the right to be reminded of constitutional rights the person always had. Thus, it seems to me that the Obama Administration in “granting Miranda Rights” to enemy combatants in Afghanistan is skipping a crucial step. Neither the Supreme Court nor Congress, to my knowledge, has granted enemy combatants rights under the Fifth and Sixth Amendments to the Constitution, and last time I checked, the Constitution does not confer upon the President the power to grant such rights by Presidential fiat.

As such, reading people their “Miranda Rights” presupposes that they have Fifth and Sixth Amendment rights, which enemy combatants do not have – at least not yet.